WEBSITE STANDARD TERMS AND CONDITIONS OF SALE
1. APPLICABILITY – All sales on the shopjacobsen.com website (“Website”) of the products (“Products”) of the Jacobsen Division of Textron Inc. (hereinafter, the “Company”) are subject to and shall be governed exclusively by the provisions of these STANDARD TERMS AND CONDITIONS OF SALE (the “Agreement”). Customer’s offer to purchase Products from Company is limited to the terms and conditions of this Agreement. Any terms or conditions in addition to, or inconsistent with those stated herein, that are proposed by Customer in any offer to Company are hereby, by reference, totally rejected. No such additional, different or inconsistent terms and conditions shall become part of this Agreement between Company and Customer unless expressly agreed to in a writing signed by both parties. Company’s acceptance of any offer to purchase by Customer is expressly conditioned upon Customer’s full agreement to all the terms and conditions herein stated, and any terms in addition to, or inconsistent with those that are contained in Customer’s purchase order or receipt by Customer of Products, shall in all events constitute full acknowledgment of and assent to the terms and conditions in this Agreement.
2. LIMITED WARRANTY – The limited warranty for the Products (“Limited Warranty”) shall be as set forth on Exhibit A to this Agreement and are incorporated herein and subject to the terms and conditions of this Agreement.
3. PATENTS AND INTELLECTUAL PROPERTY - Company agrees to indemnify and hold Customer harmless from and against any liability, damages and expenses in connection with suits or proceedings which may be brought against Customer for infringement of any U.S. patent, trademark or copyright resulting from the sale or use of the Products. In the event Company is enjoined from providing the Products to Customer and cannot provide non-infringing substitutes reasonably acceptable to Customer, Company shall have the right to terminate all open purchase orders without liability to Customer. THIS SECTION SETS FORTH COMPANY’S ENTIRE LIABILITY WITH RESPECT TO PATENTS AND OTHER INFRINGEMENTS OF INTELLECTUAL PROPERTY.
4. DELIVERY, TITLE AND RISK OF LOSS - The Products will be delivered F.O.B. Customer’s location (in accordance with Incoterms 2000) and title and risk of loss will transfer upon delivery to the Incoterms delivery point. Unless otherwise indicated on the Website, all delivery dates specified in the purchase order are estimates only and time is not of the essence in Company’s performance of any purchase order. IN NO EVENT SHALL COMPANY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF OR RELATED TO A DELAY OR FAILURE TO DELIVER PRODUCTS.
5. FORCE MAJEURE - The Company shall not be liable to Customer or any third party for Company’s failure to perform any of its obligations under this Agreement when the failure is caused in whole or in part by the occurrence of any contingency beyond the control of the Company or its Affiliates, including but not limited to war (whether an actual declaration thereof is made or not) or hostility; sabotage, terrorism, insurrection, riot or other acts of civil disobedience, crime, tort or any other unlawful act; act of a public enemy; failure or delay in transportation; act of any government or any agency, subdivision or branch thereof; judicial action; strike or other labor dispute; accident, fire, epidemic, explosion, flood, storm or other act of God; shortage of labor, fuel, materials or machinery, or technical failure; or delay or failure to perform by any supplier. In the event of a shortage of Products which makes it impossible or impracticable for the Company to fill all orders from all of its customers in the quantities and within the time periods originally agreed upon, the Company will allocate its available Products in any manner it deems reasonable. Customer’s lack of finances or ability to perform or pay shall not be considered an event of Force Majeure.
6. PACKING and SHIPMENT – Customer shall promptly and thoroughly inspect all shipments of Products immediately after delivery. Customer shall notify the Company in writing within ten (10) days after the delivery of the Products of any packing shortages and shall submit all packing slips and inspection reports along with said written notice. The Company reserves the right to refuse to adjust any packing shortages in the event the foregoing procedure has not been followed. Customer shall within ten (10) days after delivery notify the Company in writing of any other failure of the Products to conform to this Agreement which is reasonably discoverable upon delivery, and shall notify the Company in writing of any other failures to conform to this Agreement within ten (10) days after the earlier of the date of actual discovery thereof, or the date on which such failures should have been discovered in the exercise of reasonable diligence. All claims of failures of Products to conform to this Agreement not reported to the Company as required by this Section will be deemed forever waived.
7. TAXES -Any applicable duties or sales, use, excise, value-added or similar taxes will be added to the price and invoiced separately. Company is unable and cannot accept tax-exempt orders.
8. TERMS OF PAYMENT - The full price of all Products shall be due and payable by credit card. On late payments, the price shall, without prejudice to Company's right to immediate payment, be increased by the lesser of 1 1/2% per month on the unpaid balance or the maximum permitted by law. If at any time in Company's reasonable judgment, Customer is unable or unwilling to meet the terms specified, Company may require satisfactory assurance or full or partial payment as a condition to commencing or continuing manufacture or making shipment, and may, if shipment has been made, recover the Products from the carrier, pending receipt of such assurances.
9. NONCANCELLATION - Customer may not cancel or terminate for convenience any order, except with Company's written consent and then only upon terms that will compensate Company for its engineering, fabrication and purchasing expenses, and any other costs relating to such cancellation, termination or suspension, plus a reasonable amount for profit and overhead.
10. LIMITATION OF LIABILITY - NEITHER COMPANY NOR ITS AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INSURERS AND ATTORNEYS SHALL BE LIABLE, WHETHER IN CONTRACT, WARRANTY, FAILURE OF A REMEDY TO ACHIEVE ITS INTENDED OR ESSENTIAL PURPOSES, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR ANY OTHER LEGAL THEORY, FOR LOSS OF USE, REVENUE OR PROFIT, OR FOR COSTS OF CAPITAL OR OF SUBSTITUTE USE OR PERFORMANCE, OR FOR INDIRECT, SPECIAL, LIQUIDATED, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER LOSS OR COST OF A SIMILAR TYPE, OR FOR CLAIMS BY CUSTOMER FOR DAMAGES OF CUSTOMER'S CUSTOMERS, RELATED TO OR ARISING OUT OF THE DESIGN, MANUFACTURE, LEASE, SALE, USE OR MAINTENANCE OF THE PRODUCTS. CUSTOMER AND COMPANY AGREE THAT THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION ARE SEPARATE AND INDEPENDENT FROM ANY REMEDIES WHICH CUSTOMER MAY HAVE HEREUNDER AND SHALL BE GIVEN FULL FORCE AND EFFECT WHETHER OR NOT ANY OR ALL SUCH REMEDIES SHALL BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
11. CHOICE OF LAW; LITIGATION MATTERS - This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, exclusive of its conflict of law provisions. ANY CLAIM, DISPUTE, OR CONTROVERSY, (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, WHETHER PREEXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN CUSTOMER AND COMPANY, arising from or relating to this Agreement (including but not limited to the Limited Warranty), its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY THE NATIONAL ARBITRATION FORUM (“NAF”) under its Code of Procedure then in effect (available via the Internet at http://www.arb-forum.com or via telephone at 1-800-474-2371). The arbitration will be limited solely to the dispute or controversy between Customer and Company and NEITHER CUSTOMER NOR COMPANY SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. This transaction involves interstate commerce, and this provision shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. Any award of the arbitrator(s) shall be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction. Company will be responsible for paying any arbitration filing fees and fees required to obtain a hearing to the extent such fees exceed the amount of the filing fee for initiating a claim in the court of general jurisdiction in the state in which Customer resides. Each party shall pay for its own costs and attorneys’ fees, if any. However, if any party prevails on a statutory claim that affords the prevailing party attorneys’ fees, or if there is a written agreement providing for fees, the arbitrator may award reasonable fees to the prevailing party, under the standards for shifting providing by law. Information may be obtained and claims may be filed with the NAF at P.O. Box 50191, Minneapolis, MN 55404, USA. The exclusive place of arbitration shall be Charlotte, North Carolina, USA. To the extent permitted by applicable law, any lawsuit for breach of contract, including breach of warranty, arising out of or related to the transactions covered by this Agreement, must be commenced not later than twelve (12) months from the date the cause of action accrued.
12. CHANGES IN LAWS AND REGULATIONS - Company’s prices and timely performance are based on all applicable laws, rules, regulations, orders, codes, standards or requirements of governmental authorities effective on the date of Company’s proposal. Any change to any law, rule, regulation, order, code, standard or requirement which requires any change shall entitle Company to an equitable adjustment in price and/or time of performance.
13. COMPLIANCE WITH EXPORT LAWS AND REGULATIONS - Products manufactured or sold by Company, as well as technical data related thereto, are subject to export licensing controls under the U.S. Export Administration Regulations and the U.S. Department of Treasury’s boycott and export control regulations. If Customer is responsible for obtaining export approvals, Customer warrants that it will not assist or participate in any export of Products or related technical data without first obtaining the required export license and will not knowingly assist or participate in any such diversion or other violation of applicable U.S. laws and regulations. Customer shall indemnify and hold harmless Company for any damages, losses or claims arising out of or related to Customer’s failure to comply with applicable export control laws and regulations.
14. ANTI-CORRUPTION COMPLIANCE – In the event Customer resells the Products outside of the United States, Customer certifies that neither Customer nor any of its officers, directors, employees, agents or representatives have paid, offered to pay or promised to pay, or authorized the payment of, directly or indirectly through any other person or firm, anything of value (in the form of compensation, gift, contribution or otherwise) to any person or entity employed by or acting for or on behalf of any other customer, whether private or governmental, for the purpose of inducing or rewarding any favorable action by the customer in connection with such transaction; or any government official, political party or official of such party, or any candidate for political office, for the purpose of inducing or rewarding favorable action or the exercise of influence by such official, party or candidate in connection with such transaction. Customer shall indemnify and hold harmless Company and its Affiliates for any damages, losses or claims arising out of or related to Customer’s failure to comply with the provisions of this Section.
15. RELATIONSHIP OF THE PARTIES – Customer and Company are independent contractors, and nothing in this Agreement makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party.
16. WAIVER AND SEVERABILITY- The failure of Company to enforce any right or remedy provided in this Agreement or any other agreement between the parties, or by law on a particular occasion will not be deemed a waiver of that right or remedy on a subsequent occasion or a waiver of any other right or remedy. A finding that any provision of this Agreement is invalid or unenforceable in any jurisdiction will not affect the validity or enforceability of any other provision of this Agreement or the validity or enforceability of that provision in any other jurisdiction.
17. ASSIGNMENT, DELEGATION AND THIRD PARTY RIGHTS - No right or interest in the sale of Products hereunder shall be assigned by Customer without the written permission of Company, and no delegation of any obligation owed, or the performance of any obligation by Customer, shall be made without the written permission of Company. Any attempted assignment or delegation shall be wholly void and totally ineffective for all purposes unless made in conformity with this Section. Company shall have the right to assign this Agreement or any related purchase order and its obligations thereunder to any affiliate of Company or any successor to substantially all of the assets of Company. In the event of a proper assignment, this Agreement shall be binding upon and inure to the benefit of either party’s successors and assigns. Notwithstanding any provision of law, no third party (including Customer’s customer) shall have any right to enforce this Agreement or any other contractual or other rights against Company or its affiliates.
18. INTERPRETATION, PAROL EVIDENCE – This Agreement is intended as a final expression of the Company’s quotation and as a complete and exclusive statement of the terms thereof. No course of prior dealings between Company and Customer, and no trade usage shall be relevant to supplement or explain any term used herein. Whenever a term defined by the Uniform Commercial Code (“UCC”) is used herein, the definition contained in the UCC shall control.
19. ENTIRE AGREEMENT – This Agreement, including the exhibits hereto, constitutes the entire understanding and agreement between the parties and supersedes any prior oral or written agreements with respect to the subject matter hereof.